Opinion
March 5, 1992
Appeal from the Supreme Court, New York County (Burton S. Sherman, J.).
The IAS court did not err in finding that added defendant Forest Electric waived its objection to jurisdiction based on plaintiffs' failure to obtain leave of the court before serving it with a supplemental summons and complaint joining that defendant as a party to the action.
Although a court order is required to add a new party to an action, and the failure to obtain such generally renders service on the new party a nullity (Christiansen v City of New York, 144 A.D.2d 328, lv denied 73 N.Y.2d 710), nevertheless, a failure to obtain leave of the court may be waived and is not fatal in all cases (Gross v BFH Co., 151 A.D.2d 452; Gavigan v Gavigan, 123 A.D.2d 823). We agree with the IAS court that Forest Electric, by answering plaintiffs' amended pleading and then delaying approximately three months until after the Statute of Limitations had run before moving to dismiss, waived any jurisdictional defect in the manner in which it was joined (McDaniel v Clarkstown Cent. Dist. No. 1, 83 A.D.2d 624 ). In view of the foregoing, we do not reach plaintiffs' other argument that the oral stipulation they entered into with the originally named defendant, permitting the joinder of additional parties, obviated the need for a court order (cf., Micucci v Franklin Gen. Hosp., 136 A.D.2d 528, 529; CPLR 3025 [b]).
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Carro, Wallach, Ross and Smith, JJ.